Thursday, April 1, 2010

The complete and original settlement is here. Below are some notes in case you don't want to read the whole thing, although these notes aren't really much shorter than the original.

I'm no lawyer so correct me if I'm wrong.

Italicized text is taken from the original.

[5] Counsel for Ms. McKinnon made three basic submissions regarding the Terms of Settlement:

(i) The primary submission was that no reform plan should be implemented by the current Board and Executive Director of the THS. Ms. McKinnon submitted that the proposed THS Reform Plan had not been subjected to critical examination, and that the THS should wait until the results of the election on May 30 are known and leave it to the new Board to decide what reforms should be initiated;

(ii) In addition, Ms. McKinnon submitted that no existing director of the THS should be eligible to stand for re-election at the May 30 meeting;

Good on Ms. McKinnon for trying to push through item (ii). The last thing a new board needs is a bunch of old board members all ready to sour the new beginnings. Too bad the judge didn't go for it. See [8] below.

[7] Paragraphs 1 through 11 and Appendix "A" of the Terms of Settlement address corporate governance issues. Their implementation will result in the holding of a special general meeting of THS members on May 30, 2010, under the supervision of an independent Election Supervisor, for the purpose of nominating and electing a new Board of Directors. C. Campbell J. has kindly agreed to make himself available to mediate any dispute or disagreement relating to the Terms of Settlement that might arise in advance of that meeting. The THS and OSPCA have agreed to this supervised election process and, in my view, it addresses most of the governance concerns previously voiced by the intervenor. I have no doubt that if members have any specific concerns about the accuracy of the membership list, they can bring those to the attention of the independent Election Supervisor.

[8] As to the eligibility of the current directors to stand for re-election, evidence has been filed to indicate that most will not stand for re-election. For those directors who plan to run in the election, notwithstanding that serious charges have been laid against them, our law presumes that they are innocent until proven guilty of any charge. I therefore see no basis upon which to disqualify any current director from standing for re-election.

Are the charges of animal cruelty against the board members still pending or has some deal been made in the back rooms?

[9] One result of this court proceeding has been the public disclosure of vast amounts of information about the past and present operations of the THS. Extensive affidavit materials have been filed, and the Monitor filed two reports on the THS' finances. In my view ample information exists to enable any member who wishes to become informed about the affairs of THS to do so, which should result in transparent and informed elections come May 30.

After a decade of the THS membership not knowing what was going on, I hope everyone's paying attention now.

Animal care issues

[10] The remaining Terms of Settlement deal with the two main allegations made by the applicants regarding the performance by the THS of its charitable objects. Paragraph 12 requires the THS to report to the PGT, as requested, on any financial matter which might arise prior to the May 30 special meeting. This provision supplements the two reports already prepared by the Monitor. Paragraphs 13 and 16 of the Terms deal with the steps the THS agrees to undertake, in its THS Reform Program, to ensure that the quality of the animal care services it offers to the public properly fulfills its charitable objects.

"Paragraph 12 requires the THS to report to the PGT"

Yeah, because the PGT (Public Guardian and Trustee of Ontario) has been so helpful so far in all of this. Why they positively deserve a medal.

[11] Most of the details of the THS Reform Program for animal care are found in paragraphs 5 through to 18 of the affidavit of Garth Jerome, THS' Executive Director, affirmed March 25, 2010. It is clear from his affidavit that Mr. Jerome has consulted widely with other animal care shelters and expert veterinarians in order to identify deficiencies in the past animal care practices of the THS and to develop infrastructure, animal care policies, and staff training programs that will rectify those deficiencies.

[12] At the hearing on February 25, 2010, Ms. Catharine MacDonald, the OSPCA's CEO, testified that she thought Mr. Jerome was doing a good job as the new Executive Director of the THS. The THS Reform Program which he has spearheaded indicates to me that Mr. Jerome is working hard to ensure that the THS emerges from this process as a better-governed, better-run, and regulatory-compliant organization. His efforts have been impressive.

[13] The intervenor submitted that no matter how extensive the work performed by Mr. Jerome has been, the fact remains that he was appointed as Executive Director by the current Board and, the intervenor argued, one cannot ignore the fact that serious allegations about lack of proper animal care have been made against those Board members. In those circumstances, Ms. McKinnon contended, no reforms should be implemented until a new Board has been elected on May 30. To do otherwise, she argued, would be to usurp the power of the members to determine the direction of the needed reforms. Ms. McKinnon submitted that the parties should return to the bargaining table to strike a deal that better reflects the reality that, come May 30, a new Board will be in place.

Wasn't Mr. Jerome a lab tech or something in his last job at the THS? I'm all for promoting from within an organization but I think Jerome's appointment to CEO was one of political and financial convenience for the present board. I don't think he's proven himself yet to qualify as the best choice for CEO of what could once again be Canada's largest humane shelter. So is the new board going to be stuck with him for the next two years? At least in job title, it looks that way.

[14] I understand Ms. McKinnon's concerns. That said, the proposed settlement has arisen in the context of specific litigation. Absent a settlement, the parties will be forced to spend significant amounts of money on a hearing that will start on Tuesday. Looked at in that context, I think the proposed settlement is a reasonable one. True, the THS Reform Plan was not subjected to critical examination in a court proceeding, but the items contained in the plan involve matters that fall within the ambit of business decisions which the Board and management of an organization must make. And while serious allegations have been made against the current directors of the THS, the members will have the opportunity come May 30 to express their views on who should run the organization in the future. Most of the actions contained in the THS Reform Plan strike me as the sort the organization would have to undertake in any event. If the new Board thinks that the THS Reform Plan does not strike the right balance, it is open to the new Board to amend the plan and delay the re-opening of the THS facilities.

Sounds like the THS Reform Plan is open to reform.

[16] I should note that the OSPCA is not opposing the THS Reform Plan. At the same time, it is not agreeing to it. Instead, the OSPCA takes the position that it is up to the THS to develop and implement an operational plan that will comply with the requirements of Ontario's regulatory regime governing the care of animals. That, I think, is the correct perspective on the issue.

[17] Of course, the proof of the THS Reform Plan, or any amendments subsequently made to it, will be in the pudding. As worthy as the objectives and details of the THS Reform Program are, their successful implementation, or the implementation of any amendments, will require the support of the new Board of Directors to be elected on May 30, continued vigilance by THS management to achieve the program's objectives, and such on-going co-operation and compliance with the regulatory authorities as the law requires.

Right on.

[18] I emphasize the need for continued vigilance and diligence by the THS, its Board, staff and members, in reforming their animal care practices. This court proceeding marks the third time in less than 25 years that issues concerning the THS have come before this court: Ontario (Public Trustee) v, Toronto Humane Society (1987), 60 O.R. (2d) 236 (H.C.J.); Trow v. Toronto Humane Society, [2001] O.J. No. 3640 (S.C.J.). I have come to understand from the materials filed that the issue of the care of animals excites great passion amongst many, provoking quite different views about appropriate methods of animal care. That said, the THS owes fiduciary duties to the public who support it, and it must operate within a defined regulatory regime. Meeting those obligations must always remain the focus of the decision-makers at the THS.

Right on again.

SCHEDULE "A" TERMS OF SETTLEMENT

8. The parties shall not directly or indirectly, by word or by deed, publicly disparage any other party in relation to any matter connected with the Application and the allegations made therein. This shall not apply to individuals while they are giving evidence in proceedings properly before the courts of Ontario.

Happy public face. Snarly in the courtroom face.

9. It is understood and agreed that Laurie Overton and Tim Trow have resigned from the Board. Effective May 30, 2010, all of the seats of the current Directors (the "Current Directors") shall be vacant for the purposes of the SGM.

10. Notwithstanding anything in this agreement, Overton and the Current Directors shall remain members in good standing of THS if they elect to do so, and shall not be prohibited in any manner from volunteering their services to THS, or adopting and fostering animals from the THS.

So, does this mean the animals cruelty charges have been dropped?

11. Overton and the Current Directors may stand as candidates for Director of the THS at the May 30, 2010 election and any subsequent election, should they elect to do so.

Wouldn't it be funny if we woke up on June 1 and the whole board was re-elected?

12. From the date of this settlement to May 30, 2010, the THS shall promptly report to the PGT, at the written request of the PGT, on financial matters which may arise from time to time.

IMPLEMENTATION OF THE THS REFORM PROGRAM

13. The parties acknowledge that the THS intends to implement a reform program, described in paragraphs 5 through 18 of the affidavit of Garth Jerome, affirmed March 25, 2010, and in the letter of Stephanie McDonald to Heidi Rubin, dated March 25, 2010, attached as Exhibit "A" to the further affidavit of Ana Maciel (the "Reform Program"). The Reform Program consists of the following stages:

(a) The THS will close to the public on April 12, 2010;

(b) By April 12, 2010, the THS will divest itself of animals through adoptions, fostering, transfers to rescue groups, and euthanasia where recommended for medical reasons by THS veterinarians;

(iv) acquire and utilize software and other assets to improve operations.

(d) Following this process, on or after June 1, 2010 the THS will reopen to the public and will resume admissions of animals.

Like the judge said, the proof will be in the pudding.

14. It is agreed that the OSPCA shall remain in control of and responsible for animal care at 11 River Street until April 12, 2010, following which the THS shall be in control of and responsible for animal care and all other operations at 11 River Street.

15. If on April 11, 2010, there are any remaining animals at 11 River Street, THS shall surrender such animals to the OSPCA. There should be few, if any, animals requiring euthanasia by this date. On or before April 12, 2010, there will be no animals at 11 River Street. Following the surrender and removal of animals from 11 River Street, the OSPCA shall vacate the premises at 11 River Street.

16. For greater certainty, while THS is implementing the Reform Program between April 12, 2010 and June 1, 2010 no new animals shall be admitted to 11 River Street.

Appendix "A"

May 30, 2010 THS Court-Supervised Election Procedures

Election Supervisor: TBA, on consent of all parties. The Election Supervisor shall have authority to appoint a committee of his or her choosing to assist in the election, including a vice-chair and recording secretary for the Special General Meeting ("SGM"). This shall be a single purpose meeting solely for the election of the Board of directors. No other business may be discussed or voted on at the meeting.

The Election Supervisor will be responsible for:

• All communications with members (see timeline below for suggested communications)• Receiving nominations;• Finalizing the candidate list;• Chairing the SGM with authority to make determinations re: who may attend the meeting, and any membership questions that arise on the election day.

3. Membership List: The membership list shall be frozen as at November 26, 2009, but may include, in the sole discretion of the Election Supervisor, any unprocessed applications for memberships that were received by the THS by November 26, 2009. For the purposes of the election, the Board shall waive its authority under the Bylaws to accept or reject new memberships. Instead, this authority shall be vested in the Election Supervisor.

Sounds to me like this means no new members will be accepted. So, basically the same people who voted Trow in for the past decade will be the ones voting in the new board. Let's hope they've been keeping up this time.

4. Proxies and Absentee Ballots: Proxies will not be used during this election. Absentee Ballots will be used in this election as members may not wish to or be able to attend the SGM itself owing to:

• Distance• Age/infirmity• Wish to avoid the SGM itself

An Absentee Ballot form shall be sent out with the membership package and include an addressed envelope return date for processing. The materials shall indicate that proxy votes will not be accepted. All nominees should be listed on the form. The candidates are free to designate voting for a slate of directors and so group themselves together on the Absentee Ballot form.

Proxy votes are what allowed Trow to stay in power year after year. No one should have that kind of power - too easy to abuse. Good to see proxy votes gone.

5. Candidate Qualifications

An individual nominee will present to the Election Supervisor, by the date specified by him or her, a completed nomination form including verification that the nominee will comply with s.4(l) of Bylaw 1A, has been nominated and seconded by-members in good standing, and a biography and platform/mission/vision statement, subject to restrictions in length determined by the Election Supervisor.

• The Election Supervisor shall develop the final nomination list and have the authority to resolve questions regarding whether or not a candidate has fulfilled the above requirements;• The Election Supervisor shall have the authority to edit and/or reformat the candidate's bios and platform/mission/vision statements in reference to continuity, length, and avoid any libelous or otherwise unseemly statements.

Bios and statements shall also be made available on the THS website.

Election procedures sound fair, at least more fair than it's ever been at the THS in the past. You board of director wannabes got your best mugshots and ideas ready?

Posted by
Fred

16 comments:

Anonymous
said...

Reading into the document, the judge isn't concerned about the old board taking over again (for the most part, they're too old), he's more concerned about a new group assuming total control (and blocking out all opponents). Look at 2001 when Tim Trow took over the board. He took over the shelter with a small group of like-minded volunteers and members. The new judge doesn't want to give any member the chance to do the same.

Try and run for the OSPCA board. It's virtually impossible - they don't give outsiders a chance. This is a one-time offer to take over the board of Canada's most influential animal shelter. Best of luck folks!

As the judge says, the fundamental principle of the law is supposed to be innocent until proven guilty. As far as I can see, nothing indicates that charges have been withdrawn or negotiated. However, until proven in a court of law, those charges cannot be allowed to prompt a denial of any existing liberty. Think of it in other contexts: if you were charged with murder, which is not too far off in this case, would you not want to be tried before being punished?

Like it or not, no one has yet been proven guilty of animal cruelty. If someone is, then s/he will have to terminate, or have terminated, their relationship to the THS. That, too, is the law.

So it is really important that the folk who have important information have shared it with the OSPCA, so that, if valid, the charges are proven and the guilty punished. If witnesses keep silent, and the guilty get off, nothing lasting will be achieved.

Second, your comments on Mr. Jerome's qualifications are a bit out of order. He has more experience in his field of management than I did in mine when I started out -- and I changed careers after 15 years of unbroken success. With the intense public scrutiny he is under, I doubt that anyone is giving him a bye. Don't add to the snarking, please.

And, yes, please, everyone who cares about the future of the organisation should be running for election, or supporting someone who reflects their concerns.

If you care, get involved. If we don't act for the animals, then who will?

I am going to the court house on Tuesday to see what else is in that file now that the stay is removed. I am particularly interested in the financial information. I would also like to see the exhibits to Jerome's affidvit as one is apparently the euthanasia policy. Jerome consulted with HSUS...someone needs to drop off some material on HSUS with Justice Brown......not that it is in his purview but he apparently seems uninformed about their platform and history. The last thing we need is Wayne Purcell here in Toronto. The charges will most definitely be or already have been dropped. I think they were just a bargaining tool...charging is one thing, convicting another. Now it is clear why the membership link has been disabled at THS and is no longer in Animal Talk. They are going to try and run this new election using the old vanguard of members by effectively blocking new members. It is a nasty, nefarious plan smelling of Trowism and I think there is trouble ahead. Where is the money for all these implementations coming from...donor dollars again. It is my understanding that THS has half of the Glenn Gould estate...I am sure he is rolling over in his grave at this point. Has the $400,000 retainer (PLUS INTEREST) as that amount should have been invested by the lawyer holding it in trust paid against legal costs to defend the criminal charges (hey, no public defender for the members) been returned? This is still a bloody mess with the potential to become worse.

Good on Linda McKinnon for bringing those valid points forward. It does sound as though the new board has the power to revise the reform plans and bring some other perspectives to bear rather than simply those of Edmonton Humane.

I believe Mr. Jerome had been promoted to facilities manager after starting as a technician. There was a bit of a scandal following him for allegedly having sick and well kittens mixed for feeding expediency.

http://bit.ly/9wEYCr

I would guess he got quite a bit of coaching to come up with the reform plan, so it makes sense for the new board to continue to give him direction.

Somewhere else, someone mentioned that Ian McConachie reports to someone else, not Garth, as they don't get along so I doubt he's really running the show yet.

Fred, get your mug shot polished up. Some of us are kicking ourselves for having let our memberships lapse (while still sending donations), but we are rooting for you.

"'Wasn't Mr. Jerome a lab tech or something in his last job at the THS?'Contact the man to find out. There are too many rumors here and everywhere."

Point taken. Here's a more complete description of Mr. Jerome taken from the National Post (thanks, redstarcafe)

Born and raised in Johannesburg, Mr. Jerome holds a degree in microbiology. Before coming to Canada, he worked as a veterinary technologist in South Africa, then went on to manage a food company and ultimately direct a laboratory.

He moved to Toronto in 2008 to work as the staff microbiologist at the THS, where in addition to lab duties, he was responsible for supervising veterinary technicians and assistants.

"Don't add to the snarking, please."

Sometimes the occasional snark comes out. Actually, I've got whole posts where it's pretty well all snarking. This is a blog, not the Wall Street Journal. Don't ask for perfection because you're not paying for it.

Effectively, accepting the board's decision to shut the shelter down now means that many kittens to be born in the near future will die. Those kittens' deaths will be on the current board's heads and hands.

And I am not at all happy with the proposal by THS to have H$U$ come in to do "consultation/assessment". Why in God's name would they invite a group that doesn't operate a single shelter?

It's now essential to inform the members of THS so that they make educated choices about who to elect to the board of THS at the special meeting on May 30th.

Why the heck are they not helping out Ruthann with adoptions by extending shelter hours, running adoptathons, running some print ads, and highlighting more pets on the website? Only 64 cats are up out of, what 126? And Mary Sue, a highly adoptable sweetie pie caught in all of this mess, is buried in a link that has given no search results for the past two days.

Enough already about the fresh start.

THS: Move on and "do whatever it takes" to get these animals to safe homes. Actions speak louder than words.

There must be something in the air...Our one and only HS Inspector was canned this week. Change is blowing in. I am hoping for nothing but good things for the THS. Here's to a new board and a brighter future for all the animals who need it! Now if we could only get rid of the board here...